Citation Nr: 0507382
Decision Date: 03/14/05 Archive Date: 03/21/05
DOCKET NO. 03-34 753 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
What rating is for assignment for impotency, associated with
postoperative residuals of a radical prostatectomy, from June
12, 2002?
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The veteran served on active duty from September 1960 to July
1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating decision entered in November
2002 by the Department of Veterans Affairs (VA) Regional
Office (RO) in Winston-Salem, North Carolina, which granted
entitlement to service connection for impotency associated
with postoperative residuals of a radical prostatectomy and
assigned a noncompensable schedular evaluation from June 12,
2002. Thereafter, in an August 2004 rating decision, the RO
assigned a 20 percent, effective from November 17, 2003. The
RO determined that evidence showed a penile deformity
resulting in impotency as of that date.
In his substantive appeal of November 2003, the veteran
requested a hearing before the Board, sitting at the RO.
Such a proceeding was thereafter scheduled to occur in June
2004, but prior to its occurrence, the veteran in a written
statement, dated in June 2004, cancelled his request for a
Board hearing. No other request for a hearing remains
pending at this time.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
This matter turns on what date a penile deformity with a
resulting loss of erectile power was shown. The RO has
previously determined that such was not shown until November
17, 2003, with the RO specifically noting that October 2002
VA medical examination findings showed that the veteran's
external genitalia was normal. Notably, however, the October
2002 examination was conducted without the benefit of the
veteran's claims folder. In addition, it is uncertain
whether all of the veteran's private medical records are
currently contained within the claims folder, given that
following a March 1999 radical prostatectomy follow-up
treatment is verified only in November 1999, September 2000,
January 2001, September 2001, November 2003, and March 2004.
Notable as well is the veteran's statement that use of the
vacuum pump in an effort to overcome his impotency resulted
in his penile deformity and the date on which use of the pump
was initiated is not clear from the records on file.
Certainly such a pump was in use at least as of September
2000. On the basis of the foregoing, additional evidentiary
development for records retrieval and for further medical
examination and opinion as to the date of onset of a penile
deformity with erectile dysfunction is in order.
It is significant that the matter herein at issue is not a
claim for increase, but a claim involving the rating to be
assigned initially for the veteran's impotency from June 12,
2002. Hence, this claim is governed by Fenderson v. West, 12
Vet.App. 119 (1999). Pursuant to Fenderson, at the time of
an initial rating, separate or "staged" ratings may be
assigned for separate periods of time based on the facts
found. It is apparent, however, that this claim has not been
addressed in writing in light of the Fenderson holding.
Accordingly, this matter is REMANDED for the following
actions:
1. Specific efforts must be made by the
RO to obtain any and all pertinent
examination and treatment records not
already on file which were compiled since
March 1999 by J. H. Kim, M.D; Durham
Regional Hospital, Durham, North
Carolina; University of North Carolina
Hospital in Charlotte, North Carolina;
and University of North Carolina
Hospital, Department of Urology/Oncology,
in Chapel Hill, North Carolina, including
records compiled by Doctors Mohler,
Carson, and Wallen, once authorization
and identifying information are obtained
from the veteran. Once obtained, such
records must be made a part of the claims
folder.
2. Thereafter, the veteran must be
afforded a VA genitourinary examination
by a urologist for the purpose of
identifying the date of onset of a penile
deformity with loss of erectile power.
The veteran's claims folder in its
entirety must be made available to the
examiner for review. The examination is
to include a detailed review of the
veteran's history and current complaints,
as well as a comprehensive clinical
evaluation and all diagnostic testing
necessary to determine the current
severity of the disorder in question.
All applicable diagnoses must be set
forth.
A specific response by the examiner, with
supporting rationale, as to the following
is required:
On what date is it first shown
that the veteran had a penile
deformity with loss of erectile
power?
3. Following the completion of the
foregoing actions, the RO must review the
examination report. If such report is
not in complete compliance with the
instructions provided above, appropriate
action must be taken to return such
report for any and all needed action.
4. Lastly, the RO must prepare a new
rating decision and adjudicate the
question what rating is warranted for the
veteran's service-connected rating is for
assignment for impotency, associated with
postoperative residuals of a radical
prostatectomy, from June 12, 2002? Such
readjudication must be based on all the
evidence of record and all governing
legal authority, including the VCAA, its
implementing regulations, and the
holdings of those Federal courts
interpreting such body of law; and
Fenderson as to the possibility of the
assignment of staged ratings during the
time frame at issue.
If the benefit sought on appeal remains
denied, the veteran and his
representative must be provided with a
supplemental statement of the case, which
must contain notice of all relevant
actions taken on the claim for benefits,
to include a summary of the evidence and
applicable law and regulations considered
pertinent to the issue currently on
appeal. An appropriate period of time
should then be allowed for a response,
before the record is returned to the
Board for further review.
The veteran need take no action until otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet.App. 369 (1999). The purpose
of this remand is to obtain additional evidentiary
development and to preserve the veteran's due process rights.
No inference should be drawn regarding the final disposition
of the claim in question as a result of this action.
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).